CRS Annotated Constitution

The three previous sections considered primarily but not exclusively incidental restraints on expression as a result of governmental regulatory measures aimed at goals other than control of the content of expression; this section considers the permissibility of governmental measures which are directly concerned with the content of expression.66 As a general matter, government may not regulate speech “because of its message, its ideas, its subject matter, or its content.”67 Invalid content regulation includes not only[p.1128]restrictions on particular viewpoints, but also prohibitions on public discussion of an entire topic.68

Originally the Court took a “two–tier” approach to content– oriented regulation of expression. Under the “definitional balancing” of this approach, some forms of expression are protected by the First Amendment and certain categories of expression are not entitled to protection. This doctrine traces to Chaplinsky v. New Hampshire,69 in which the Court opined that “certain well–defined and narrowly limited classes of speech . . . are no essential part of any exposition of ideas, and are of such slight social value as a step to truth” that government may prevent those utterances and punish those uttering them without raising any constitutional problems. If speech fell within the Chaplinsky categories, it was unprotected, regardless of its effect; if it did not, it was covered by the First Amendment and it was protected unless the restraint was justified by some test relating to harm, such as clear and present danger or a balancing of presumptively protected expression against a governmental interest which must be compelling.

For several decades, the decided cases reflected a fairly consistent and sustained march by the Court to the elimination of, or a severe narrowing of, the “two–tier” doctrine. The result was protection of much expression that hitherto would have been held absolutely unprotected (e.g., seditious speech and seditious libel, fighting words, defamation, and obscenity). More recently, the march has been deflected by a shift in position with respect to obscenity and by the creation of a new category of non–obscene child pornography. But in the course of this movement, differences surfaced among the Justices on the permissibility of regulation based on content and the interrelated issue of a hierarchy of speech values, according to which some forms of expression, while protected, may be more readily subject to official regulation and perhaps suppression than other protected expression. These differences were compounded in cases in which First Amendment expression values came into conflict with other values, either constitutionally protected values such as the right to fair trials in criminal cases, or societally valued interests such as those in privacy, reputation, and the protection from disclosure of certain kinds of information.

Attempts to work out these differences are elaborated in the following pages, but the effort to formulate a doctrine of permissible content regulation within categories of protected expression[p.1129]necessitates a brief treatment. It remains standard doctrine that it is impermissible to posit regulation of protected expression upon its content.70 But in recent Terms, Justice Stevens has articulated a theory that would permit some governmental restraint based upon content. In Justice Stevens’ view, there is a hierarchy of speech; where the category of speech at issue fits into that hierarchy determines the appropriate level of protection under the First Amendment. A category’s place on the continuum is guided by Chaplinsky’s formulation of whether it is “an essential part of any exposition of ideas” and what its “social value as a step to truth” is.71 Thus, offensive but nonobscene words and portrayals dealing with sex and excretion may be regulated when the expression plays no role or a minimal role in the exposition of ideas.72 “Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.”73

While a majority of the Court has not joined in approving Justice Stevens’ theory,74 the Court has in some contexts of covered expression approved restrictions based on content,75 and in still other areas, such as privacy, it has implied that some content–[p.1130]based restraints on expression would be approved.76 Moreover, the Court in recent years has emphasized numerous times the role of the First Amendment in facilitating, indeed making possible, political dialogue and the operation of democratic institutions.77 While this emphasis may be read as being premised on a hierarchical theory of the worthiness of political speech and the subordinate position of less worthy forms of speech, more likely it is merely a celebration of the most worthy role speech plays, and not a suggestion that other roles and other kinds of discourses are relevant in determining the measure of protection enjoyed under the First Amendment.78

That there can be a permissible content regulation within a category of protected expression was questioned in theory, and rejected in application, in Hustler Magazine, Inc. v. Falwell.79 In Falwell the Court refused to recognize a distinction between permissible political satire and “outrageous” parodies “doubtless gross and repugnant in the eyes of most.”80 “If it were possible by laying down a principled standard to separate the one from the other,” the Court suggested, “public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description ‘outrageous’ does not supply one.”81 Falwell can also be read as consistent with the hierarchical theory of interpretation; the offensive advertisement parody was protected as within “the world of debate about public affairs,” and was not “governed by any exception to . . . general First Amendment principles.”82

So too, there can be impermissible content regulation within a category of otherwise unprotected expression. In R. A. V. v. City of St. Paul,83 the Court struck down a hate crimes ordinance construed by the state courts to apply only to use of “fighting words.” The difficulty, the Court found, was that the ordinance made a further content discrimination, proscribing only those fighting words that would arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. This amounted to[p.1131]“special prohibitions on those speakers who express views on disfavored subjects.”84 The fact that government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas “may be made the vehicles for content discrimination unrelated to their distinctly proscribable content. . . . [G]overnment may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”85

Content regulation of protected expression is measured by a compelling interest test derived from equal protection analysis: government “must show that its regulation is necessary to serve a compelling [governmental] interest and is narrowly drawn to achieve that end.”86 Application of this test ordinarily results in invalidation of the regulation.87 Objecting to the balancing approach inherent in this test because it “might be read as a concession that [government] may censor speech whenever they believe there is a compelling justification for doing so,” Justice Kennedy argues instead for a rule of per se invalidity.88 But compelling interest analysis can still be useful, the Justice suggests, in determining whether a regulation is actually content–based or instead is content–neutral; in those cases in which the government tenders “a plausible justification unrelated to the suppression of expression,” application of the compelling interest test may help to determine “whether the asserted justification is in fact an accurate description of the purpose and effect of the law.”89

Footnotes

66
The distinction was sharply drawn by Justice Harlan in Konigsberg v. State Bar of California,
366 U.S. 36,
49–51 (1961)
: “Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand certain forms of speech, or speech in certain contexts, have been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the states to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.”

74
In New York v. Ferber,
458 U.S. 747,
763 (1982)
, a majority of the Court joined an opinion quoting much of Justice Stevens’ language in these cases, but the opinion rather clearly adopts the proposition that the disputed expression, child pornography, is not covered by the First Amendment, not that it is covered but subject to suppression because of its content. Id. at 764. And see id. at 781 (Justice Stevens concurring in judgment).

75
E.g., commercial speech, which is covered by the First Amendment but is less protected than other speech, is subject to content–based regulation. Central Hudson Gas & Electric Co. v. Public Service Comm’n,
447 U.S. 557,
568–69 (1980)
. See also Rowan v. Post Office Dep’t,
397 U.S. 728 (1970)
(sexually–oriented, not necessarily obscene mailings); and Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991)
(nonobscene, erotic dancing).

87
But see Burson v. Freeman,
112 Ct.
1846 (1992) (state law prohibiting the solicitation of votes and the display or distribution of campaign literature within 100 feet of a polling place upheld as applied to the traditional public forum of streets and sidewalks). The Burson plurality phrased the test not in terms of whether the law was “narrowly tailored,” but instead in terms of whether the law was “necessary” to serve compelling state interests. 112 S. Ct. at 1852, 1855.

121
City of Los Angeles v. Preferred Communications,
476 U.S. 488 (1986)
(leaving for future decision how the operator’s interests are to be balanced against a community’s interests in limiting franchises and preserving utility space); Turner Broadcasting System v. FCC,
512 U.S. 622,
636 (1994)
.

123
512U.S. at
661
512U.S. at 661 (referring to the “bottleneck monopoly power” exercised by cable operators in determining which networks and stations to carry, and to the resulting dangers posed to the viability of broadcast television stations). See also Leathers v. Medlock,
499 U.S. 439 (1991)
(application of state gross receipts tax to cable industry permissible even though other segments of the communications media were exempted).

125
512U.S. at
645
512U.S. at 645. “Deciding whether a particular regulation is content based or content neutral is not always a simple task,” the Court confessed. Id. at 642. Indeed, dissenting Justice O’Connor, joined by Justices Scalia, Ginsburg, and Thomas, viewed the rules as content– based. Id. at 674–82.

126391 U.S. 367,
377 (1968)
. The Court remanded Turner for further factual findings relevant to the O’Brien test. On remand, the district court upheld the must–carry provisions, and the Supreme Court affirmed, concluding that it “cannot displace Congress’ judgment respecting content– neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination.” Turner Broadcasting System v. FCC,
520 U.S. 180,
224 (1997)
.

127518 U.S. 727,
755 (1996)
(invalidating § 10(b) of the Cable Television Consumer Protection and Competition Act of 1992).

128
Upholding § 10(a) of the Act, which permits cable operators to prohibit indecent material on leased access channels; and striking down § 10(c), which permits a cable operator to prevent transmission of “sexually explicit” programming on public access channels. In upholding § 10(a), Justice Breyer’s plurality opinion cited FCC v. Pacifica Foundation,
438 U.S. 726 (1978)
, and noted that cable television “is as ‘accessible to children’ as over–the–air broadcasting, if not more so.”
518U.S. at
744
518U.S. at 744.

129
This section of Justice Breyer’s opinion was joined by Justices Stevens, O’Connor, and Souter.
518U.S. at
749
518U.S. at 749.

130
Justice Kennedy, joined by Justice Ginsburg, advocated this approach.
518U.S. at
791
518U.S. at 791, and took the plurality to task for its “evasion of any clear legal standard.” Id. at 784.